Excerpt:.....application is not a right vested in the party. sub-section (2) of section 397, clearly bars a revision application in relation to any interlocutory older passed in any appeal, inquiry, trial or other proceeding. if the new code applies then revision application against the interlocutory order is clearly barred. 17. reverting to section 397, it appears to us that the high court as well as the sessions judge have been given co-ordinate powers to call for and examine the record of any proceedings before any inferior criminal court. however, once any of these two courts have entertained the case then the other court will refrain from taking any action in the same matter, as provided by sub-section (3) of section 397. sub-section (3) of section 397, clearly lays down that once an..........mazgaon, bombay in case no. 304/n of 1973 arising out of proceedings under section 145 of the code of criminal procedure, 1898.2. at this stage we are not concerned with the merits of the case. the revision application came up for admission before malvankar, j. on 8-7-1974 and he issued a rule and interim stay of the order dated 20-6-1974. when the revision application came up for final hearing before bhole, j. he passed the following order:mr. r. jethmalani with s. b. jaisinghani mentioned. referred to d. b.' it is not clear in this order as to for what purpose the matter was referred to the division bench. but in view of the said order the revision application has been placed before us. we are told by counsel that a question was raised before bhole. j. as to whether the high court.....

Judgment:

Padhye, J.

1. This revision application has been filed against the order of the learned Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay in Case No. 304/N of 1973 arising out of proceedings under Section 145 of the Code of Criminal Procedure, 1898.

2. At this stage we are not concerned with the merits of the case. The revision application came up for admission before Malvankar, J. on 8-7-1974 and he issued a rule and interim stay of the order dated 20-6-1974. When the revision application came up for final hearing before Bhole, J. he passed the following order:

Mr. R. Jethmalani with S. B. Jaisinghani mentioned. Referred to D. B.' It is not clear in this order as to for what purpose the matter was referred to the Division Bench. But in view of the said order the revision application has been placed before us. We are told by counsel that a question was raised before Bhole. J. as to whether the High Court has jurisdiction to entertain the revision application and that is why reference was made by Bhole, J. to a larger Bench. Since the matter is before us, we consider this question which has been posed before us.

3. It is the contention on behalf of the petitioner, who has filed the revision application that this Court has jurisdiction and can entertain the revision application. The learned Counsel for the respondents does not seriously dispute the position that the High Court has got jurisdiction to entertain the revision application against the order of the Additional Chief Metropolitan Magistrate. The learned Public Prosecutor appearing for the State, however, contends that the revision application could only be entertained by the Sessions Judge and the High Court has no jurisdiction to entertain the revision application. We shall consider the rival contentions raised by the counsel.

4. We shall, however, state only the necessary facts to understand the point involved in the case: The petitioner filed an application under Section 145 of the Code of Criminal Procedure, 1RP8 on 14-8-1973 in the Court of the Additional Chief Presidency Magistrate (as he then was) 2nd Court, Mazgaon. Bombay complaining of having been dispossessed on 7th August 1973 of two rooms in 303, Shivlal Motilal Mansion situate at Bellasis Road, Bombay 8.

5. After an enquiry into this application an order was passed on 20-6-1974 declaring the respondent No. 1 to be in possession of the two rooms in dispute and that he was entitled to retain such possession until evicted in due course of law. It is this order which is sought to be challenged by the present petition.

6. It may be noted that during the pendency of the enquiry before the Additional Chief Metropolitan Magistrate and before the final order was passed, the Criminal Procedure Code was amended and the new Criminal Procedure Code as amended came into force with effect from 1-4-1974.

7. It has been contended that since the proceedings under Section 145 of the Code of Criminal Procedure had commenced when the old Code of Criminal Procedure was in force, all the rights of the parties will be governed by the provisions of the old Code of Criminal Procedure. In effect it was urged that the petitioner had a right of revision against the order of the Additional Chief Metropolitan Magistrate under the old Code and he could file a revision application in the High Court. On the other hand it is the contention of the other side that there is no vested right of a revision as in the case of an appeal and, therefore, the revision against the order passed on 20-6-1974 which was after the date the new Code came into force could not be filed under the old Code but had to be filed, if it could be, under the provisions of the new Code of Criminal Procedure. This question need not detain us for long because the Supreme Court in Pranab Kumar Mitra v. State of West Bengal : 1959CriLJ256 has clearly laid down that the revision application is not a right vested in the party. It has been held that it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. It has further been held that the revisional powers of the High Court vested in it by Section 439 read with Section 436, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that sub-ordinate criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. They then compared this power with a right of appeal given to a party which is a statutory right provided in the Code. That right cannot be denied to a party in exercise of the discretionary power even of the High Court. It is thus clear that a revision not being a right vested in the party or a statutory right, the provisions of the old Code which has been repealed by Sub-section (1) of Section 484 of the Code of Criminal Procedure, 1973, could not be invoked. The question, therefore, is, whether under the provisions of the new Code of Criminal Procedure, this Court has got jurisdiction to entertain the revision application.

8. Reliance has been placed on the decision of a single Judge of this Court, Vimadalal J., in Rachappa v. State of Maharashtra, Criminal Revn. Appln. No. 34 of 1975 decided on 31-1-1975 (Bom). In this case the complaint was filed on the 11th of December 1973. The complaint was dismissed by the Additional Chief Metropolitan Magistrate, by order dated the 10th of September 1974 under Section 203 of the Code of Criminal Procedure, 1898. Against this order the revision application had been filed in the High Court. The question was, whether this Court had jurisdiction to entertain the revision application. The learned Judge has held that Clause (a) of Sub-section (2) of Section 484 of the new Code has no application to any further proceedings by way of revision of that order. He relied upon the decision of the Supreme Court referred to above. We have no quarrel with these observations so far. However, while construing the provisions of the new Code, the learned Judge has observed as follows:

I have, however, no hesitation in coming to the conclusion that as far as this revision application is concerned, it must be filed in the Sessions Court of Greater Bombay under Section 397 of the Code of Criminal Procedure, 1973, for Clause (a) of Sub-section (2) of Section 484 would apply only to the continuance and/or disposal of a pending appeal, application, trial, inquiry or investigation. In so far as the revision application was not pending in this Court on the date when the new Code of Criminal Procedure came into force, the said clause cannot be invoked for the purpose of giving jurisdiction to this Court. The application, therefore, returned to the applicant, who must file it in the Court of Session for Greater Bombay.

We also do not find quarrel with the observations made that Clause (a) of Sub-section (2) of Section 484 has no application because the revision application was not pending on the date the new Code came into force. But we are not in a position to agree with respect to the jurisdiction of this Court in entertaining the revision application under the provisions of Section 397 of the new Criminal Procedure Code.

9. A Division Bench decision of this Court in Criminal Revn. Appln. No. 353 of 1974, decided on 20th December 1974 Reported in (1975) 77 Bom LR 45 by Apte and Sapre, JJ. was also brought to our notice. In this case a complaint was filed before the Code came into force. However charge was framed on 9-4-1974 i. e. after the new Code came into force. A revision application was filed by the accused against the framing of the charge. The question was, whether the revision application was maintainable against an interlocutory order which was passed after the new Code came into force. It was held that a revision application could not be filed against such interlocutory order in view of the provisions of Sub-section (2) of Section 397 of the new Code. Sub-section (2) of Section 397, clearly bars a revision application in relation to any interlocutory Older passed in any appeal, inquiry, trial or other proceeding. If the new Code applies then revision application against the interlocutory order is clearly barred. It is not necessary for us to say whether the framing of a charge is an interlocutory order, but it appears that the Division Bench proceeded on the assumption that the framing of the charge was an interlocutory order. Since there is a specific bar provided by the Code itself, the interlocutory order is not revisable under the new Code, But that is not the question which arises before us. This decision, therefore, is not appropriate for the case in hand and we need not consider the judgment in great detail.

10. Then there is a judgment of the learned single Judge, Bhole J., of this Court in Criminal Revn. Appln. No. 648 of 1974 decided on 6th January 1975. This was again a revision application against the interlocutory order admitting certain documents in evidence in a complaint which was filed before the new Code came into force. This decision also is, therefore, of not much assistance in deciding the point which is before us.

11. We, therefore, proceed to consider the question posed before us as to whether the High Court has jurisdiction to entertain a revision application against the final order passed by the Magistrate, after the new Code came into force.

12. Under the old Code, the powers of the High Court to revise the orders of the lower Court by calling for and examining the record of any proceeding before any inferior court were given by Sections 435 and 439 of that Code. Under Section 435, as amended in Bombay, the High Court or any Sessions Judge other than the Sessions Judge of the Court of Session for Greater Bombay, could call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. The High Court was further given a power by Sub-section (4) of Section 435, to call for and examine the record of any proceeding in respect of an order made under Sections 118, 122, 143, 144 or 145 notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police. The Sub-section (4) of Section 435 as it stood, without the Bombay amendment, provided that if an application under this section, i. e. Section 435, has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.

13. Section 436 gave power to the High Court to order further enquiry if it was found necessary on examining the record. Similar power was given to the Sessions Judge also under that provision. Under Section 438, if a revision application was filed before the Sessions Judge, the Sessions Judge could either reject the revision application or if he differed from the decision of the Magistrate, he had to make a report for the orders of the High Court and after considering the recommendations of the Sessions Judge, the High Court would give its final decision. Section 439 gave High Courts power of revision.

14. The provisions similar to those referred to above have been given by the new Code in sections 397, 398, 399, 401 and 402.

15. Section 397 (1) empowers the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Then Sub-section (3) of Section 397, takes away the power of the other Court to entertain a revision application if the revision application has been entertained by one of them and disposed of. Sub-section (3) of Section 397, reads as under:

If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

16. We may then go to Section 399 which provides for the Sessions Judge's powers of revision. The Sessions Judge has been given powers similar to those to be exercised by the High Court under Section 401 of the New Code. Sub-section (3) of Section 399 reads as under:

Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

In this connection we may also have an occasion to refer to the provisions of Section 402 of the new Code which runs as under:

402 (1):- Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the questions involved, which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as If it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge.

17. Reverting to Section 397, it appears to us that the High Court as well as the Sessions Judge have been given co-ordinate powers to call for and examine the record of any proceedings before any inferior criminal Court. It may no doubt be said that a party has no right of revision as such, but any party can move a Court whether High Court or a Sessions Judge, for calling for the record of any proceedings of any inferior court and examine the same, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order. It, therefore, appears on the plain reading of this section that it is either the High Court or the Sessions Judge which may by itself or himself suo motu call for and examine the record, or any irregularity or illegality in the proceedings may be brought to the notice of the High Court or the Sessions Judge by any person including a party to a proceeding before inferior criminal Court. However, once any of these two Courts have entertained the case then the other court will refrain from taking any action in the same matter, as provided by Sub-section (3) of Section 397. Sub-section (3) of Section 397, clearly lays down that once an application under Section 397 has been made to any of the two courts, then no further application by the same person shall be entertained by the other Court.

18. On the reading of these provisions, it would appear that both the High Court and the Sessions Judge have got the power to go into the record and have jurisdiction to pass the necessary orders after examining the record of any proceeding. It is not, therefore, that either the High Court or the Sessions Judge, has no jurisdiction to go through the record or to entertain an application if made by any person and to pass the necessary orders thereon. It does appear and particularly on the reading of Sub-section (3) of Section 397, that any person interested can move the Court, either the High Court or the Sessions Judge, by making an application for revising the order of the inferior court. It is for that Court before whom an application has been made to entertain it or not. That, however, is a different question. But the jurisdiction of the Court is not barred if the Court is inclined to exercise the powers vested in it or him. If, as is contended, the High Court has no jurisdiction to entertain a revision application then that is likely to cause prejudice to one of the parties and that party will be put to a disadvantage. If the contention raised on behalf of the State is accepted then in that case every revision application against an order of a Magistrate must be made to the Sessions Judge and can never be made to the High Court. If that is so, then the High Court will not be in a position to entertain a further application at the instance of that party and the order which is passed by the Sessions Judge would be a final order, as provided in Sub-section (3) of Section 399 of the new Code. Under the old Code, both the High Court as well as the Sessions Judge excluding the matters in Greater Bombay, had concurrent jurisdiction and powers to entertain revision applications. The revision application could be filed either before the Sessions Judge in the mofussil or before the High Court direct and there was nothing to prevent the High Court in entertaining such a revision application and disposing it of but as a matter of practice, the High Court had laid down for itself certain guidelines and had also made a rule to the effect that ordinarily where the Sessions Judge as well as the High Court have got concurrent jurisdiction, the revision application should be filed first before a Court of lower jurisdiction namely the Sessions Judge and then the order of the Sessions Judge, if necessary could be revised by the High Court in further revision application. Rule, 14 of Chapter XXVI of the Bombay High Court Appellate side Rules provided that in the absence of special circumstances, the High Court will not entertain an application for revision where an application for revision might have, but hag not, been made to a lower revisional Court. There are also decisions of this High Court where it has been laid down that except in exceptional circumstances the High Court will not directly entertain a revision application from the order of a Magistrate. It would thus appear that under the old Code if the revision application filed by a party before the Sessions Judge was rejected, then that party had a further opportunity of revision before the High Court and the High Court could give, if it was found necessary, a relief to the party concerned. That opportunity is now taken away by the new Code if a revision application were to be filed before the Sessions Judge. Once the revision application filed by a party before the Sessions Judge is rejected then under the new Code by virtue of provisions of Sub-section (3) of Section 399, that order becomes final and that party whose revision has been rejected by the Sessions Judge cannot further move the High Court for the revision of the said order though the opponent can file a revision application if the revision, were allowed. Thus the party who approaches the Sessions Judge in revision against an order of the Magistrate under the new Code is deprived of the advantage of the order of the High Court in a revision under the new Code and has to be satisfied with the order of the Sessions Judge unless his application under Article 227 of the Constitution were entertained by the High Court, That is, however, an exceptional and purely discretionary remedy and there may or may not be any interference. If the High Court's jurisdiction to entertain a revision application directly from the order of the Magistrate was to be barred a specific provision to that effect could have been made in the Code itself. On the contrary we find in Section 397 that the power has been given to both the Courts simultaneously and on the wording of Section 397, a party is not precluded from invoking the powers of any of them. It is left to the party concerned to avail of any of the two remedies but he cannot however avail of both the remedies once he has chosen his course,

19. We may also refer to the provisions of Section 40'2, which would also augment the view which we are taking. We have already quoted Section 402. Section 402 of the new Code clearly indicates that a revision application could be filed both before the High Court as well as the Sessions Judge. If several persons are convicted at the same trial, same of the convicted persons may make an application to the High Court and the others may make an application to the Sessions Judge and then it lays down the procedure that has to be followed in such a contingency. This would clearly show that an application for revision can be made either to the High Court or to the Sessions Judge and the revision application to the High Court is not at all barred. It is not therefore correct to say that since power has been given both to the High Court and to the Sessions Judge to revise the orders of the inferior Courts that the revision must necessarily be filed before the Sessions Judge who is a court inferior to the High Court and that the High Court's jurisdiction would be barred. We art with respect, not in a position to agree with the view expressed by our learned brother Vimadalal J. in Criminal Revn. Appln. No. 34 of 1975 (Bom) to the effect that the revision application must be filed in the Sessions Court and the High Court could have no jurisdiction to entertain the revision application. We also do not agree that the revision application should be returned to the Sessions Judge for the reason that this Court has no jurisdiction to entertain the revision application, The different provisions of the New Code as Sections 397, 399 and 402 did not come to be considered in that case. On the reading of these provisions together, we are of the view that the jurisdiction of the High Court in entertaining the revision application against an order of the Magistrate is not barred and it is not necessary for a party in all cases to file a revision application before the Sessions Judge. The High Court may or may not interfere with the order but that is not to say that this Court has no jurisdiction or power to entertain the revision application. Accordingly we take the view that a revision application can be filed directly to the High Court by a party aggrieved by the order of the Magistrate and the High Court can deal with the same as it thinks fit, However, we sitting in a Division Bench, do not intend to deal with this case on merits. This is a revisional matter within the jurisdiction of the single Judge. Accordingly we send this case to single Judge who will deal with the same in accordance with law.